Appendix — Marullo v. Cassanova

a Supreme Court, u.3. ~

“ } FILED

—

941 87 O MAY 9 - 1995.

NO. OFFICE OF THE CLERK

(pe TA TE ARS AERIS HEART

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1994

FRANK A. MARULLO, JR., ET AL.

PETITIONERS

VERSUS

NOEL PATRICK CASSANOVA, ET AL.

RESPONDENTS

PETITION FOR WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

APPENDIX TO PETITION FOR WRIT OF

CERTIORARI

Respectfully submitted,

RICHARD P. IEYOUB

ATTORNEY GENERAL

BRUCE A. CRANNER

COUNSEL OF RECORD

C.T. WILLIAMS, JR.

J. ELLIOTT BAKER

Special Assistant Attorneys General

BLUE WILLIAMS, L.L.P.

3421 N. Causeway Bivd., 9th FI.

Metairie, LA 70002

Telephone: (504) 831-4091

Counsel for the Petitioners

SERS MRS Ne A A ATT ERS RIES R TPT LIP TE NE BREE! SEES

eT

APPENDIX

INDEX OF DOCUMENTS

DOCUMENT PAGE

Document 1

Per Curiam Opinion of the United

States Court of Appeals for the

PE CE Wh ANOKA OAH R ESE OBC O% A-1

Document 2

Order and Reasons of the United States

District Court, Eastern District of

EMI cece eee reescenevercees A-4

Document 3

Plaintiffs’ Amended Complaint ........ A-10

Document 4

Constitutional and Statutory

SUOVIONS TVORVER 2 cc ccc cer sceecece A-49

NE —

UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 94-30368

Summary Calendar

NOEL PATRICK CASSANOVA

and KAREN SULLIVAN CASSANOVA,

Plaintiffs—Appellees,

versus

FRANK A. MARULLO, JR., ET AL.,

Defendants—Appellants.

Appeal from the United States District

Court for the Eastern District of

Louisiana (CA-94—0376)

Before JONES, BARKSDALE and BENAVIDES, Circuit

Judges.

a

PER CURIAM:

Appellants, judges of the criminal district court for the

Parish of Orleans, challenge the district court's refusal to

dismiss appellees' § 1983 complaint on the grounds of

qualified immunity. An interlocutory appeal is permitted

from the court's order only to the extent that qualified

immunity was denied as a matter of law. Mitchell v.

Forsythe, 472 U.S. 511, 105 S.Ct. 2806 (1985).

Having reviewed the district court's order in light of

appellees' complaint, we agree with her first conclusion:

taking all of appellees' allegations as true, the appellants, by

terminating Mr. Cassanova's employment, may have violated

his constitutional right to free speech. This conclusion is

Local Rule 47.5 provides: "The publication of

opinions that have no precedential value and merely decide

particular cases on the basis of well-settled priniciples of law

imposes needless expense on the public and burdens on the

legal profession." Pursuant to that Rule, the Court has

determined that this opinion should not be published.

A-2

based on Cassanova's allegations that he was terminated

because he was acting as a "whistle blower” and was giving

advice to the Governor and other public officials about the

operations of the Jury Commission. Appellants may or may

not have a chance of succeeding in their defense of qualified

immunity at trial or at a much earlier point in the

proceedings. As the district court recognized, however, it is

plainly premature to dismiss this case on the pleadings.

Because the defense of qualified immunity was not

erroneously denied, this appeal is DISMISSED.

A-3

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF LOUISIANA

NOEL PATRICK CASSANOVA CIVIL ACTION

and KAREN SULLIVAN CASSANOVA

VERSUS NO. 94-376

FRANK A. MARULLO, JR., SECTION "N"

JAMES F. McKAY, III,

DENNIS J. WALDRON,

MORRIS REED,

GERARD J. HANSEN,

PATRICK QUINLAN,

CALVIN JOHNSON,

and FRANK SHEA

ORDER AND REASONS

Defendants have filed a motion to dismiss pursuant to

Federal Rule of Civil Procedure 12(b)(6) on grounds that they

are entitled to qualified immunity and have filed a motion to

stay discovery pending resolution of this issue.' For reasons

stated below, defendants’ motion to dismiss on grounds of

' The defendants have alleged alternative grounds for

their motion to dismiss which will be addressed by

subsequent order of this Court.

A-4

;

i

:

4

qualified immunity is DENIED, and defendants' motion to

stay discovery pending ruling on the motion to dismiss on

grounds of qualified immunity is DENIED as moot.

Plaintiffs summarize their claims as follows:

Mr. Cassanova was terminated essentially

because (1) he engaged in his first amendment

right to free speech in reporting financial

misconduct to appropriate governmental

authorities, and (2) he engaged in

constitutionally protected activity in discussing

with legislators and individuals in_ the

Governor's office the need to statutorily revise

the method by which the budgeted funds of

the Jury Commission were handled. Both of

these claims are asserted through 42 U.S.C.

1983. Plaintiff also asserts various state iaw

claims under the pendant jurisdiction of this

court.

(Plaintiff's Memorandum in Opposition to Defendants’ Motion

to Dismiss, p.2). Plaintiff relies upon Frazier v. King, 873

F.2d 820 (Sth Cir. 1989) wherein the Fifth Circuit set forth

plaintiff's burden as follows:

In order to establish a constitutional violation

Frazier must first prove that her speech

A-5

involved a matter of public concern. |citation

omitted] Second, she must demonstrate that

her interest in ‘commenting upon matters of

public concern’ is greater than the defendants’

interest in ‘promoting the efficiency of the

public services [they] perform.’ [citation

omitted] Third, she must show that her speech

motivated the defendants’ decision to fire her.

If Frazier is able to prove these three elements,

the burden shifts to the defendants to prove

that they would have fired Frazier even if she

had not exercised her right to free speech.

The Court in Frazier found that the defendants had violated

the plaintiff's First Amendment rights and also held that the

defendants were not entitled to qualified immunity.

There has been extensive publicity over the

past decade concerning the rights and

protections afforded whistle blowers. A

reasonable official would know that it would

be a violation of Frazier's rights to fire her

after she blew the whistle on the improprieties

at the prison. See Brawner, 855 F.2d at 193

(stating that a "reasonably objective public

official would have known that termination of

an employee for his speech concerning

misconduct by public officials would violate a

clearly established constitutional right").

Defendants contend that Frazier is distinguishable

A-6

"[b]ecause the plaintiffs have alleged facts which fully

support the dismissal of Mr. Cassanova from his employment,

independent of any 'speech' related action, qualified immunity

attaches." (Defendants' Reply Memorandum, p. 6). However,

defendants are confusing their burden of proof (as it may be

shifted to them) concerning whether plaintiffs’ constitutional

rights were actually violated with their defense of qualified

immunity. Defendants’ contention that they had a lawful

reason for firing Mr. Cassanova may be relevant regarding

whether Mr. Cassanova's rights were in fact violated but not

regarding whether the rights allegedly violated were clearly

established.

Plaintiffs allege that Mr. Cassanova was fired because,

inter alia, he exercised his First Amendment rights and that

the reasons given by defendants for seeking to have Mr.

Cassanova terminated were pretextual. For purposes of

defendants' motion to dismiss, these allegations must be taken

A-7

as true. Therefore the dispositive issue is whether the night

allegedly violated was a clearly established right. If so, the

defendants are not entitled to qualified immunity. The Fifth

Circuit has recognized that the right of an employee to blow

the whistle on misconduct of public officials is a clearly

established constitutional right and that defendants who

violated that right are not, therefore, entitled to qualified

immunity. See, Frazier, supra, and cases cited therein.

Further, qualified immunity is an affirmative defense

which must be pleaded by defendants. Harlow v. Fitzgerald,

457 US. 813, 815, 102 S.Ct. 2727, 2736 (1982). Thus,

plaintiffs’ complaint may only be dismissed on grounds of

qualified immunity if "the defense clearly . . . appears on the

face of the pleading." Wright & Miller, § 1357, pp. 348-49.

2 In ruling on a motion to dismiss, the Court must accept

as true all well pleaded facts and all inferences from those

facts and must construe the complaint liberally in favor of the

plaintiff. American Waste & Pollution Control Co. v.

Browning—Ferris, Inc., 949 F.2d 1384 (Sth Cir. 1991).

A-8

ee

a cee a ee ee TO ee

This Court finds that the defense of qualified immunity does

not clearly appear on the face of plaintiffs' complaint.

Accordingly,

IT IS ORDERED that defendants' motion to dismiss

on grounds of qualified immunity is DENIED.

IT IS FURTHER ORDERED that defendants’ motion

to stay discovery pending determination of defendants' motion

to dismiss on grounds of qualified immunity is DENIED as

moot.’

New Orleans, Louisiana, this 2 day of June, 1994.

sig/Edith Brown Clement

EDITH BROWN CLEMENT

UNITED STATES DISTRICT JUDGE

3 Defendants have not requested that discovery be

limited to the issue of qualified immunity, contending that

there are no facts in dispute underlying the issue of qualified

immunity which require discovery. Therefore, this Court

does not so limit discovery.

A-9

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF LOUISIANA

NOEL PATRICK CASSANOVA CIVIL ACTION

and KAREN SULLIVAN CASSANOVA

VS. NO. 94-0376

FRANK A. MARULLO, JR., SECTION "N"

JAMES F. McKAY, III,

DENNIS J. WALDRON,

MORRIS REED, | MAGISTRATE (1)

GERARD J. HANSON,

PATRICK QUINLAN,

CALVIN JOHNSON, and

FRANK SHEA JURY DEMAND

AMENDED COMPLAINT

The complaint of Noel Patrick Cassanova

("Cassanova"), and Karen Sullivan Cassanova, nusband and

wife, both residents of the full age of majority and domiciled

in the Parish of Orleans, State of Louisiana, respectfully

represents:

1.

This district court has original jurisdiction over the

A-10

claims and causes of actions asserted in this civil action

pursuant to 28 USC Sec. 1331 and 1343.

ys

Venue is proper in this district court pursuant to 28

USC Sec. 1391(b) in that all defendants reside in this judicial

district and, further, the claim arose in this judicial district.

2.

The following persons are made defendants herein and

are sued personally:

A. FRANK A. MARULLO, a resident of

the full age of majority of the Parish of

Orleans, State of Louisiana;

B. MORRIS W. REED, a resident of the

full age of majority of the Parish of

Orleans, State of Louisiana;

od PATRICK H. QUINLAN, a resident

of the full age of majority of the Parish

of Orleans, State of Louisiana;

D. CALVIN JOHNSON, a resident of

the fuli age of majority of the Parish of

Orleans, State of Louisiana;

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E. FRANK J. SHEA, a resident of the

full age of majority of the Parish of

Orleans, State of Louisiana;

F. JAMES F. McKAY, a resident of the

full age of majority of the Parish of

Orleans, State of Louisiana;

G. GERARD J. HANSEN, a resident of

the full age of majority of the Parish of

Orleans, State of Louisiana;

H. DENNIS WALDRON, a resident of

the full age of majority of the Parish of

Orleans, State of Louisiana.

4.

The Board of Jury Commissioners for the Parish of

Orleans (hereinafter "Board") is a_ statutorily created

governmental entity of the State of Louisiana which is

charged with the responsibility of securing juries for criminal

and civil courts in Orleans Parish. Under the provisions of

Code of Criminal Procedure Art. 404 and 404.1 the Board is

composed of five commissioners appointed by the governor

who serve at his pleasure. Under the provisions of R.S.

A-12

15:111 the commissioners "shall elect a secretary of the board

of jury commissioners". This secretary is commonly

referred to as "Executive Director" and shall be referred to as

such hereinafter. The Board and its employees shall be

referred to hereinafter as "Jury Commission".

5.

In 1986, Louisiana Code of Criminal Procedure

Article 404.1 was enacted. This article transferred the

accounting functions of the Jury Commission to the Judicial

Administrator of the Criminal District Court for the Parish of

Orleans, which, according to the statute, had certain

supervisory functions over the Commission. Prior to that

time, all check writing and accounting functions were done

by an employee of the Board under the supervision of the

Board. Subsequent to the transfer, the financial and check

writing functions were done pursuant to the direction and

control of certain judges on the Criminal District Court.

A-13

a

6.

On February 3, 1993, a special meeting of the Board

was held for the purpose of filling the vacant position of

Executive Director of the Board. Plaintiff, Cassanova, by

unanimous vote, was appointed to fill that position at a salary

of $38,000.00 per year, plus applicable fringe benefits, which

appointment was retroactive to February 1, 1993. As

Executive Director, Cassanova was responsible for the proper

functioning of the Board and Jury Commission, their business

dealings and financial integrity.

7.

Cassanova had been recommended to serve as

Executive Director by Governor Edwin Edwards. Prior to

plaintiff assuming his position, he met with the Executive

9. AP RNEASY NERY LRH

Counsel for the governor for the purpose of discussing his

appointment. At this meeting plaintiff was informed that as

Executive Director his duties required him to thoroughly

A-14

@

Pa

analyze the financial records of the Board, particularly in

regard to payroll and budget, for the lurpose of determining

whether public monies were being properly and prudently

spent, whether those receiving checks from the Board were

actually employed by the Board, and whether the level of

funding was appropriate to meet the needs and responsibilities

of the Board.

8.

Having assumed his position, and in compliance with

the duties imposed upon him by his position, plaintiff sought

to review the Jury Commission's payroll account, operating

account, budget and inventory control sheets. Cassanova |

learned that these records had been taken by the Judicial

Administrator and Judge Marullo. Cassanova requested the

records from the Assistant Judicial Administrator and was

informed by her that she maintained the payroll and operating

account, that the Judicial Administrator maintained the budget

A-15

ee ee ee ee ee

and that an employee of the Judicial Administrator had the

inventory control sheets. Cassanova was initially informed

that the records would be readily made available to him;

however, when he sought to pick up the records two days

later, he was informed by the Assistant Judicial Administrator

that Judge Marullo had ordered her to prohibit plaintiff from

viewing or taking possession of the records.

9.

Although Judge Marullo is not the chief judge of the

Criminal District Court, he exercises power and control over

the operations and policies (formal and informal) of the

Court, the hiring and firing of personnel and the operation of

the Criminal Court Building out of proportion to the power

and authority exercised by other members of the Court.

10.

After being denied access to the records, plaintiff

called the Governor's office and informed the Governor's

A-16

Executive Counsel of his inability to obtain the records.

Plaintiff was informed that the Board, as a matter of law, had

a right to the records. Plaintiff returned to the Assistant

Judicial Administrator to reassert his right to review the

records. Plaintiff was informed by the Assistant Judicial

Administrator, the Judicial Administrator as well as the

employee in possession of inventory control sheets that they

were forbidden by Judge Marullo from providing plaintiff

with the records and that he would have to appear before and

en banc meeting of the Criminal Court to request the records

from all of the judges.

11.

Plaintiff informed Judge Jerome M. Winsberg, Chief

Judge of the Criminal Court, of his inability to obtain the

requested financial records. Judge Winsberg provided

plaintiff with a copy of the budget and stated that he would

assist plaintiff in obtaining the other records.

A-17

12.

The day plaintiff obtained a copy of the budget he

reviewed it with the Chairperson of the Board as well as the

Jury Pool Coordinator who were both long term employees

of the Board. Review of the budget showed employees

carried on the Board's payroll who could not be identified as

working for the Board. Plaintiff also was provided partial

inventory control sheets which revealed a purchase in excess

of $5,000.00 for Queen Anne furniture which was listed as

being used in the Jury Commission Office. This furniture,

however, was not being used by the Jury Commission nor

had it been used by the Board.

13.

The en banc meeting was held on March 1, 1993. At

this meeting plaintiff stated that he desired to review the

payroll, operating account, budget and inventory control

sheets of the Board. Judge McKay inquired as to the purpose

A-18

ee os nema

of the request. Plaintiff responded that it had come to his

attention and the attention of the Board that considerable

sums of money allocated to the Jury Commission had been

used on furniture and payroll totally unrelated to Jury

Commission activities. At this point Judge Marullo stated

that there was no Jury Commission, that the Criminal Court

had taken over the Commission and that any funds budgeted

to the Board were for the exclusive use of the Criminal

Court. Plaintiff informed the Court that he would

communicate this statement to the Governor's Executive

Counsel. Judge McKay stated that plaintiff would be

provided with a copy of the budget and that if the budget

ended up in the press the judges would now how it got there.

No mention was made of the other records. The minutes of

the meeting reflect that the Court voted to provide plaintiff a

copy of the budget of the Jury Commission.

14.

A-19

en ee Re ee

Plaintiff conveyed the results of the meeting to the

oN IR LAIR A OY

Governor's Executive Counsel and was informed that the

funds budgeted for use by the Board were for the exclusive

use of the board and not for the use of the Criminal Curt or

individual judges.

15.

Several days subsequent to the en banc meeting

plaintiff received from the Assistant Judicial Administrator

certain financial records of the Board, including payroll

records and inventory control sheets. These records were

reviewed by plaintiff, the Board's Chairperson and Jury Pool

Coordinator. This review indicated approximately $25,000.00

travel experses charged to the Board and paid for from the

Board's funds. Investigation revealed that the actual funds

expended but the Board over the entire time period was

approximately $2,000.00. Further investigation revealed that

the balance of approximately $23,000.00 had been used by

A-20

the Criminal Court Judicial Administrator purportedly to

lobby the Louisiana Legislature in Baton Rouge on behalf of

the Orleans Criminal Court. Other questionable payroll and

property entries were also discovered. In addition, it was

discovered that the audit for the Orleans Criminal Court was

paid entirely from the Board's funds.

16.

Plaintiff informed the Governor's Executive Counsel

of what was revealed by examination of the records. Plaintiff

was informed that if the court was acting in this manner that

these practices were very questionable. Plaintiff informed the

Judicial Administrator and members of the Court that he had

been informed that such practices were questionable.

i}.

Judge Marullo and the Judicial Administrator stated

that the previous practices would not be stopped and the

funds would be used for whatever purpose he (Marullo) or

A-21

the Court pleased. The Governor's Executive Counsel was

informed that no changes in the practices of the Judges were

forthcoming.

18.

Proposed legislation was drafted, which among other

things, would have transferred accounting functions from the

Judicial Administrator back to the Board. A copy of the

proposed legislation was provided to the Court by plaintiff.

The Criminal Court en banc discussed the proposed

legislation and at this meeting Judge Marullo stated, among

other things, that he (Marullo) would have plaintiff's job and

take him off the payroll. Defendants stated that they were

opposed to the proposal.

18.

Plaintiff met with Judge Marullo in his chambers to

discuss the proposed legislation and his attempts to review

the financial records of the Board in his capacity of Executive

A-22

setae aia iia

Director of the Board. In this meeting Judge Marullo

informed plaintiff that if he did not prevent the filing of the

proposed legislation, Marullo would have him terminated

from his job after the legislative session. Judge Marullo's

position, as expressed to plaintiff, was that it was Marullo's

building, jobs and money and that any one who did not agree

with that position would have to go.

19.

The day after meeting with Judge Marullo, the

proposed legislation was filed.

20.

In compliance with a request from the Executive

Counsel, plaintiff, on April 21, 1993, wrote Governor

Edwards formally informing him of the results of his

examination of the records of the Board.

21.

In response to this letter the Governor instructed

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plaintiff to call a special meeting involving Judge Marullo,

representing his position, Chief Judge Winsberg, on behalf of

the Court, plaintiff, representing the Board, and the

Governor's Executive Counsel. This meeting was held at the

Criminal District Court in New Orleans and was attended by

Judges Marullo, McKay, Shea, Winsberg and Cannizzaro, the

Assistant Judicial Administrator, plaintiff and the Governor's

Executive Counsel. Plaintiff was requested by Judge McKay

to remain out of the meeting room at the beginning of the

meeting. Plaintiff has been informed that shortly after the

meeting began the Governor's counsel asked Judge Marullo

whether it was true that the Board's funds had been used for

lobbying purposes. In response, Judge Marullo stated that as

far as he was concerned the meeting was over and walked

out. As he walked past plaintiff Judge Marullo stated:

"You've dug a big hole for yourself. You are out of here.

You are finished."

A-24

Bien

Plaintiff was called into the meeting by Judge

Winsberg and was present for the balance of the meeting.

During the meeting Judge McKay stated that the Criminal

Court had no authority to use jury commission funds on an

payroll or other expenses unreiated to jury commission

activities. He further stated that he could not justify using the

Board's funds on non-Board business. Nevertheless, he

stated that he opposed the proposed legislation. Judges

Cannizzaro and Winsberg stated that they favored the

legislation.

a.

On May 1, 1993, plaintiff requested an opinion from

the Attorney General's office whether the Criminal Court had

the authority to fire him as Executive Director.

24.

On or about May 7, 1993, the Chairperson of the

A-25

Board was requested by the Judicial Administrator to sign a

letter drafted on Jury Commission letterhead but not prepared

by the Jury Commission attesting to the truthfulness of the

financial statement filed with the Legislative Auditor,

including all funds under the control of the Jury Commission.

Because of the investigation into the use of the Jury

Commission funds and the discovery of questionable

expenditures the Chairperson refused to sign the letter. This

fact was transmitted to defendants.

25.

As a result of requesting an Attomey General's

opinion the Attorney General's office inquired as to the

number of classified employees hired by the Board. Plaintiff

responded "none". He was then informed that that had to be

incorrect. Subsequent investigation revealed that the Board's

employees, according to the Director of Civil Service, had

been improperly removed from state classified service, at the

A-26

urging of Judge Marullo, in October, 1989. In July, it came

to plaintiff's attention that several of the Board's personnel

were listed as unclassified employees, which, according to the

Attorney General's office, was improper. Plaintiff then

contacted the State Civil Service Commission for the purpose

of transferring the Board's unclassified employees to

classified status. On August 17 plaintiff received a directive

from Herbert Sumrall, Director, Louisiana Civil Service,

instructing plaintiff that Commission employees should be in

state classified service. Plaintiff then began to institute

proceedings to have the Board's employees classified under

Civil Service which activities were known to defendants.

26.

On June 15, 1993, plaintiff received his last check.

27.

Plaintiff subsequently learned that the Court voted to

fire him from his position as Executive Director on June 24,

A-27

1993. The minutes of an en banc meeting held on that date

show that Judge Marullo moved to fire plaintiff, which

motion was seconded by Judge McKay. Those voting to

terminate plaintiff were Judges Frank J. Shea, Frank A.

Marullo, Jr., Gerard J. Hansen, James F. McKay, III, Patrick

Quinlan, Calvin Johnson and Morris Reed. The minutes of

the meeting do not give a reason for the termination.

28.

At no time has plaintiff received any formal

notification from the Court that he had been terminated.

Plaintiff has since learned that a "Separation Notice Alleging

Disqualification" was prepared on June 24, 1993, and signed

by Judge Marullo, stating that "Mr. Cassanova was dismissed

because of absentecism due to his attending legislative

hearings in Baton Rouge when he should have been in New

Orleans" as well as for "failure of performing his duties in

the Jury Commission's Office because of his chronic

A-28

absenteeism". On July 13, 1993, a document was signed by

Judges Reed, Quinlan, Marullo, Johnson, Waldron, Shea,

McKay and Hansen ordering the Judicial Administrator's

Office to remove plaintiff from the Jury Commission payroll.

In addition, an "official letter of notification", dated June 24,

1993, and signed by Judges Reed, Quinlan, Marullo, Johnson,

Shea, McKay and Hansen" stated that plaintiff was terminated

for the reasons set forth above, and in addition stated that his

termination was also "due to other budgetary restraints."

29.

The termination of plaintiffs employment by

defendants and the ordering of the cessation of his paychecks

was done without legal cause or authority and in retaliation

for plaintiff engaging in constitutionally protected activity.

Such action was done by defendants in their administrative

capacity for which actions they are personally responsible and

liable.

A-29

30.

On July 8, 1993, the Attorney General issued opinion

No. 93-404 which concluded that only the Board could

terminate its Executive Director. At no time has the Board

taken any action to terminate plaintiff as director. On the

contrary, the Board has supported his actions.

se

On July 15, 1993, the Board wrote the Judicial

Administrator and made a formal request that plaintiff be

paid. On August 12, 1993, Governor Edwin Edwards wrote

the Judicial Administrator, instructing him to reinstate

plaintiff on the payroll and to make back payments owed to

plaintiff to make him current.

a

On August 12, 1993, Jerome M. Winsberg, Chief

Judge for the Orleans Criminal District Court instructed the

Judicial Administrator to reinstate plaintiff on the payroll and

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PP ENB hn Ret

SP PT

(ne AS IE a no CCA

make all back payments current.

33.

On August 17, 1993, a letter was directed to plaintiff,

as Executive Director of the Board, from Herbert L. Sumrall,

Director, State of Louisiana Department of Civil Service,

informing plaintiff that certain employees of the Board should

properly be civil service employees and requesting plaintiff

to submit certain forms to facilitate their classification.

34.

On August 17, 1993, a vote was taken by the Court

not to reinstate plaintiff nor to pay him "his salary or any

back payments.” Those voting in favor of this motion were

Judges Quinlan, Hansen, Johnson, Marullo, Reed, Shea and

McKay (his vote, according to the minutes, having been case

by Judge Marullo in absentia).

35.

Plaintiff has continued to perform his duties as

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Executive Director of the Board, even though he has not been

paid, and he reports to his office in the Criminal Court

building on a daily basis.

36.

On December 22, 1993, Judge Marullo, in explaining

the termination of Cassanova, appeared on television Channel

6, which broadcasts over the New Orleans area and beyond,

and stated that plaintiff "... was collecting money from the

state in an amount which would cost this court $42,000.00

and didn't want to come to work and he was in Baton Rouge

and not here and I think that's a felony and he was a

deadhead.” Such derogatory comments are untrue, libelous

per se and have caused damage to plaintiff.

37.

Plaintiff received no due process in the alleged

ternination of his employment. Plaintiff was not notified that

the question of his employment was to be considered by

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defendants prior to their taking action seeking to terminate his

employment. Plaintiff was given no opportunity to appear

before the Court, respond to questions concerning his

employment or present his position or defense to charges

raised against him.

38.

The reasons given by defendants for plaintiff's

termination and cessation were a pretext. Based on the

circumstances of his firing and information provided to

plaintiff, it is plaintiffs belief, and he so alleges that

defendants, at the urging of Judge Marullo, took retaliatory

action to terminate his employment, restrict his access to

documents and limit his ability to inform others of

questionable practices of public concern because:

A. Cassanova exercised his right to free

speech in reporting to appropriate state

authorities, namely, the Governor, the

Governor's executive counsel,

legislative auditor and director of the

A-33

Civil Service Commission,

questionable personnel, payroll and

financial practices which were matters

of public concern.

Cassanova exercised his right to free

speech, the right to peaceably assemble

and to petition the Government for a

redress of grievances by engaging in

the political process by 1) supporting

and assisting in the attempted passage

of legislation in the Louisiana

legislature which affected the Board

and Jury Commission and 2) in

assisting Board personnel in being

classified under state civil service.

Cassanova exercised his right to free

speech in bringing to the attention of

the Court en banc financial and

personnel practices which were

questionable ‘and were matters of

public concern.

by investigating the financial and

payroll practices of the Board, as

controlled by the Court through certain

of its members, chiefly, Judge Marullo,

Cassanova placed the Court in a

position that past and present practices

of the Court and certain of its members

would be made public and subject the

Court and certain of its member to

A-34

public scrutiny for the reason that

Cassanova was informing persons

outside of the Court, including

governmental authorities, of

questionable financial, personnel and

payroll practices, which ere matter of

public concern.

39.

Cassanova was wrongfully "terminated" and payments

to him "suspended" without lawful cause, by State Judges

acting in administrative and not judicial capacities, whom

under the color of state law, in the form of state action,

intentionally disregarded state and federal law by conduct

involving a reckless disregard or callous indifference to

Cassanova's rights, and, in doing so, wrongfully damaged

plaintiffs.

40.

Cassanova was damaged economically, through the

loss of his employment, the deprivation of his income, and

the incurring of medical bills. Cassanova was damaged

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a om ST

A EET Rat Se

physically in that he was treated for a suspected heart attack

as a result of stress arising from the actions of defendants.

As a result of the actions of defendants plaintiffs were

damaged emotionally, through mental anxiety an distress,

humiliation, disruption of their family life, and financial

stress.

41.

The actions of defendants and the consequential

damage sustained by thereby giving rise to the following

federal and state causes of action:

CAUSES OF ACTION

COUNT ONE

42.

Cassanova adopts Paragraphs 1 — 41 above.

43.

The actions of defendants constitute the deprivation of

and violation of Cassanova's constitutional rights as protected

A-36

by United Stated Constitution, First and Fourteenth

Amendments, Louisiana Constitution's 1974, Article i,

Section 4, in particular the right to free speech, the right to

peacefully assemble and to petition the government for

redress of grievances, all of which give rise to causes of

action under the foregoing articles, and as such are cognizable

under 42 U.S. 1983, and the law of Louisiana including

Article 1, Section 4, Louisiana Constitution.

COUNT TWO

44,

Cassanova adopts Paragraphs 1-43 above.

45.

The actions of defendants constitute the deprivation of

and violation of Cassanova's right to due process of law as

protected by the United States Constitution, Fourteenth

Amendment, and Louisiana Constitution of 1974, Article l,

Section 2, thereby giving rise to a cause of action under 42

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USC Sec. 1983 and the law of Louisiana.

COUNT THREE

46.

Cassanova adopts Paragraphs 1-4 above.

47.

The actions of defendants constitute the deprivation of

and violation of Cassanova's privileges and immunities as

protected by the United States Constitution, Fourteenth

Amendment, and Louisiana Constitution of 1974, Article 1,

Sections 3, 5 and 7, thereby giving rise to a cause of action

under 42 USC Sec. 1983 and the law of Louisiana.

COUNT FOUR

48.

Cassanova adopts Paragraphs 1-47 above.

49.

The actions of defendants constitute the deprivation of

and violation of Cassanova's right as a public employee to be

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free and protected from retaliation, reprisals for obeying the

law, for cooperating with governmental authorities, for

reporting questionable activity to members of the court, the

governor's Office, the legislative auditor, the Board of Jury

Commissioners, the Civil Service Commission and other

governmental officials. Those actions of defendants violate

the United States Constitution, First aad Fourteenth

Amendments, Louisiana Constitution of 1974, Article 1,

Sections 2, 3, 5, and 7, and also LSA —- RS. 482:1169,

thereby giving rise to a cause of action under 42 USC Sec.

1983 and the law of Louisiana.

COUNT FIVE

50.

Cassanova adopts Paragraphs 1-49 above.

51.

Defendants, by seeking to terminate and interfere iwth

his position of executive director, chose to treat Cassanova,

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a whistleblower, differently from others over whom

defendants claimed to have authority, and thus deprived and

denied Cassanova of his right to equal protection of the law

as guaranteed by the United States Constitution, Fourteenth

Amendment and the Louisiana Constitution of 1974, Article

1, Section 3, thereby giving rise to a cause of action under 42

USC Sec. 1983 and the law of Louisiana.

COUNT SIX

52.

Cassanova adopts Paragraphs 1-51 above.

53.

Defendant Frank Marullo has slandered plaintiff, as

stated in paragraph 36, giving rise to a cause of action for

defamation under Louisiana law.

COUNT SIX A

53A

Plaintiffs include by reference all previous allegations.

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Defendatns defamed Noel Casanova because of untrue

statements made in the document described in paragraph 28

above and which are:

"Mr. Cassanova's termination from _ this

position is based upon the following

enumerated reasons:

1) Absentecism due to his attending

Legislative hearings and meetings in

Baton Rouge when he should have

been in New Orleans;

2) Failure of performing his duties in the

Jury Commission's Office because of

his chronic absenteeism;

COUNT SEVEN

54.

Plaintiffs adopt Paragraphs 1-53 above.

a

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Plaintiff, Karen Cassanova, asserts a cause of action

because of the damages sustained by her as a result of the

unlawful actions of defendants.

COUNT EIGHT

56.

Plaintiffs adopt paragraphs 1-55 above.

57.

Defendants intentionally and tortiously interfered with

plaintiff's contractual rights with his employer, The Board of

Jury Commissioners for the Parish of Orleans, by instructing

the Judicial Administrator to withhold payment of

Cassanova's salary for work performed as the Board's

Executive Director and for work which he continues to

perform.

COUNT NINE

58.

Plaintiffs adopt paragraphs 1-57 above.

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59.

The acts of defendants as described herein in ordering

the cessation of Cassanova's paycheck for the reasons

described above was conduct of such an outrageous nature as

to entitle plaintiffs to recover damages.

DAMAGES

60.

The actions of defendants have cause economic and

emotional injuries and damages to Noel Cassanova, in sums

no less than those set out as follows:

A.

Past wage/salary (award of

back pay) from date of

termination to anticipated trial

EE $ 100,000.00

Present value of future

wage/salary lost, including

Ee 300,000.00

Pain and suffering, mental

anguish and distress, public

embarrassment, humiliation and

damage to reputation ........ 500,000.00

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D. Medical bills, past and

ee aie ee a aac 5,000.00

D. Punitive and exemplary

GND bv ion eae eon eens 800,000.00

B. Attorney's fees pursuant to 42

CFG; OG. BOE 6 ee wets eteoes 300,000.00

TOTAL DAMAGES ..... $ 2,005,000.00

61.

Karen Cassanova has suffered mental anxiety and

distress, pain and suffering, physical injury as a result of

stress, humiliation and disruption of her family life, and

medical bills, all damaging her in the sum of $300,000.00.

62.

Cassanova requests a trial by jury on all appropriate

issues.

63.

Cassanova reserves the right to amend and

supplementthis Complaint at a later date as additional

information becomes available through discovery. Cassanova

reserves the right to name other persons as defendants if

discovery reveals that they violated applicable laws.

WHEREFORE, Noel Patrick Cassanova prays for

judgment in his favor and against the defendants as sohdary

obligor as follows:

A. $905,000.00 in actual damages;

B. $800,000.00 in punitive or exemplary

damages;

c. $300,000.00 in attorney's fees and

other taxable costs;

D. For interest and costs as the law

permits;

E. For trial by jury on all appropriate

issues; and

F. For all general and equitable relief to

which he may be entitled.

Karen Sullivan Cassanova prays for judgment in her

favor and against the defendants in solido as follows:

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$300,000.00 in actual damages;

$300,000.00 in punitive or exemplary

damages;

$300,000.00 in attorney's fees and

other taxable costs;

For interest and costs as the law

permits;

For trial by jury on all appropriate

issues; and

For all general and equitable relief to

which he may be entitled.

By Attorneys.

sig/Charles R. Moore

Charles R. Moore, T.A.

Bar Roll #9604

MOORE, WALTERS, SHOENFELT &

THOMPSON

Post Office Box 80359

6513 Perkins Road

Baton Rouge, Louisiana 70898-0359

Telephone: (504) 766-1100

CERTIFICATE OF SERVICE

I hereby certify that a true copy of the foregoing has

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been furnished to the following counsel of record by U‘S.

Mail, postage prepaid.

Mr. C.T. Williams, Jr.

Mr. Bruce Cranner

Mr. Martin Bohman

3421 N. Causeway Blvd

9th Floor

Metairie, Louisiana 70002-3760

Telephone (504)831-4091

Counsel for James F. McKay, III,

Dennis J. Waldron, Morris Reed

Gerard J. Hansen, Patrick Quinlan,

Calvin Johnson and Frank Shea

Mr. Michael H. Ellis

Mr. T. Peter Breslin (Secretary - Lisa)

CHEHARDY, SHERMAN, ELLIS, BRESLIN

MURRAY

Suite 1100, One Galleria Boulevard

Metairie, Louisiana 70001

Tel: 1-833-5600

Counsel for James F. McKay, III,

Dennis J. Waldron, Morris Reed

Gerard J. Hansen, Patrick Quinlan,

Calvin Johnson and Frank Shea

Mr. Franz L. Zibilich

LEE, MARTINY & CARACCI

Suite 201

131 Airline Highway

Metairie, Louisiana 70001

A-47

&

Counsel for Frank A. Marullo, Jr.

Baton Rouge, Louisiana this 29th day of March, 1995.

sig/Charles R. Moore

CHARLES R. MOORE

A-48

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED

The First Amendment to the United States

Constitution provides:

Amendment I -- Freedom Of Religion,

Speech And Press; Peaceful Assemblage;

Petition Of Grievances

Congress shall make no law respecting an

establishment of religion, or prohibiting the

free exercise thereof; or «bridging the freedom

of speech, or of the press; or the right of the

people peaceably to assemble, and to petition

the Government for a redress of grievances.

The Fourteenth Amendment to the United States

Constitution provides in part:

Amendment XIV -- Citizenship; Privileges

And Immunity; Due Process; Equal

Protection; Apportionment Of

Representation; Disqualification Of

Officers; Public Debt; Enforcement

Section 1. All persons bom or naturalized in

the United States, and subject to the

jurisdiction thereof, are citizens of the United

States and of the State wherein they reside.

No State shall make or enforce any law which

Shall abridge the privileges or immunities of

citizens of the United States; nor shall any

A-49

State deprive any person of life, liberty, or

property, without due process of law; nor deny

to any person within its jurisdiction the equal

protection of the laws.

od * *

42 U.S.C. §1983 provides:

§1983. Civil Action For Deprivation Of

Rights

Every person who, under color of any statute,

ordinance, regulation, custom, or usage, of any

State or Territory or the District of Columbia,

subjects, or causes to be subjected, any citizen

of the United States or other person within the

jurisdiction thereof to the deprivation of any

rights, privileges, or immunity secured by the

Constitution and laws, shall be liable to the

party injured in an action at law, suit inequity,

or other proper proceeding for redress. For

the purposes of this section, any Act of

Congress applicable exclusively to the District

of Columbia shall be a statute of the District

of Columbia.

La. C.C. art. 2747 provides:

Art. 2747. Contract of servant terminable

at will of parties

A man is at liberty to dismiss a hired servant

A-50

attached to his person or family, without

assigning any reason for so doing. The

servant is also free to depart without assigning

any Cause.

La.C.Cr.Proc. art. 404.1 provides:

Art. 404.1. Powers, duties, and functions of

the Board of Jury Commissioners in

parishes of 475,000 or more!

A. Notwithstanding any other law to the

contrary, this article shall apply to the

Board of Jury Commissioners in

parishes of 475,000 or more in

population. In such parishes, there

Shall be a Board of Jury

Commissioners, hereinafter referred to

as "the Board", composed of five

members appointed by the Governor,

subject to confirmation of the Senate,

to serve at his pleasure. The Board

shall meet at least once every six

months and when it is ordered to do so

by the Court, and may meet to select

or supplement the general venire for

grand and petit jurors. Three members

shall constitute a quorum. The Board

may select a new general venire at any

meeting and shall do so when ordered

by the Court.

‘Orleans Parish is a parish of 475,000 or more.

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The Board in such parishes may, with

the concurrence of the judges of the

Criminal District Court, have

subpoenas served through personal or

domiciliary service by depositing same

in the United States Mail, regular,

certified, or registered, addressed to the

juror at his usual residence or business

address. The date of mailing shall be

not less than fifteen days prior to the

date on which the addressee is

subpoenaed to appear. When service is

by regular mail, the Board of Jury

Commissioners shall retain a record of

the date of mailing. In the case of

service by regular mail, or prior to any

contempt citation, the person shall be

served by registered or certified mail

with return receipt requested. If

service is made by registered or

certified mail with return receipt

requested, the return receipt shall be

retained by the Jury Commission as

proof of proper service and failure of

the person to respond to the subpoena

so served shall constitute contempt of

Court.

The municipality which the Board ser

ves in such parishes shall cooperate

with the Board to provide the Board

with records, computer and other

equipment, voter registration roles,

A-52

tapes, and other items which it needs

to compile the general venire of grand

jurors and petit jurors at no cost to the

Board.

The Board in such parishes shall

develop a plan to govern its operation.

The plan shall be approved by a

majority of the judges of the Criminal

District Court of such parishes.

(TI

The Board shall have the authority

over all of its employees, subject to the

Supervision by the Criminal District

Court. The Board, by majority vote,

shall determine all matters related to its

jurisdiction, subject only to the

approval of the judges of the District

Court or Criminal District Court.

The accounting functions of the Board

and of the Jury Commission shall be

transferred to the Judicial

Administrator of the Criminal District

Court.

All procedures and policies developed

by the Jury Commission shall be under

the direction and subject to the

approval of the Criminal District Court,

en banc.

La.C.Cr.Proc. art. 404 provides in part:

A-53

Art. 404. Appointment of Jury

Commission; Term of Office;

Oath;Quorum; Performance of Function in

the Parish of East Baton Rouge by the

Judicial Administrator; Performance of

Function in the Parish of Lafourche by the

Clerk of Court

A. Except in the Parish of East Baton

Rouge;

(i) the Jury Commission of each

parish shall consist of five

members, each having the

qualifications set forth in

Article 401.

(2) In Orleans Parish the Jury

Commission shall be appointed

by the Governor, and the

commissioners shall serve at

his pleasure. In other parishes

the Jury Commission shall

consist of the Clerk of Court or

a Deputy Clerk designated by

him in writing to act in his

stead in all matters affecting

the Jury Commission, and four

other person appointed by

written order of the District

Court, who shall serve at the

Court's pleasure.

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(3) Before entering upon their

duties, members of the Jury

Commission shall take an oath

to discharge their duties

faithfully.

(4) Three members of the

Jury Commission shall

constitute a quorum.

(5) Meetings of the Jury

Commission shall be open to

the public.

B. and C. [these Subsections apply only to the

Parishes of East Baton Rouge and Lafourche

and not to the Parish of Orleans. Therefore,

they have been omitted from this quotation. ]

La. R.S. 15:111 provides:

§ 111. Parish of Orleans; salary of jury

commissioners; vacancy; appointment of

secretary

Each of the jury commissioners for the Parish

of Orleans shall receive a salary of not less

than $ 4,200.00 per annum.

The commissioners shall select a secretary of

the Board of Jury Commissioners. The

Secretary of the Board shall receive a salary of

not less than $ 4,000.00 per annum.

A-55

The salaries of the jury commissioners and the

secretary shall be payable monthly by the City

of New Orleans; provided that the City of

New Orleans shall be required to budget and

continue to pay to the jury commissioners and

the secretary the amount presently budgeted

and that any increase in the amount of salaries

presently paid by the City of New Orleans

occasioned by the passage of this bill shall not

be effective unless and until ratified and

approved by the City Council.

If in the case of absence or inability to act for

any cause, there shall be no quorum of the

Board of Commissioners the Governor shall

appoint commissioners to fill said temporary

vacancy or vacancies, who shall have the

power of jury commissioner under the Code of

Criminal Procedure.